Compatibility With Enhanced 911 Emergency Calling Systems; PSAP E911 Service Readiness

AGENCY:

Federal Communications Commission.

ACTION:

Final rule; petitions for reconsideration.

SUMMARY:

This document responds to petitions for reconsideration of the Commission's October 2001 decision which addressed a petition from the city of Richardson, Texas by adopting rules that clarify what constitutes a valid Public Safety Anwering Point (PSAP) to trigger a wireless carrier's obligation to provide E911 service to the PSAP within six months. The document modifies the Commission's rules to provide additional clarification regarding PSAP readiness. The action is taken to respond to the petitions for reconsideration and to promote rapid E911 implementation.

DATES:

Effective February 21, 2003, except for §§ 20.18(j)(4) and (5), which contain information collection requirements that are not effective until approved by the Office of Management and Budget. The Commission is seeking emergency approval from the Office of Management and Budget for these collections. Public comment on the information collections on these PRA burdens are due March 24, 2003. The Commission will publish a document in the Federal Register announcing the effective date of these sections.

FOR FURTHER INFORMATION CONTACT:

Jennifer Salhus, Attorney, 202-418-1310. For further information concerning the information collection contained in this Fourth Memorandum Opinion and Order, contact Judith Boley Herman, Federal Communications Commission, 202-418-0214, or via the Internet at jboley@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Order on Reconsideration (Recon) in CC Docket No. 94-102; FCC 02-318, adopted November 21, 2002, and released November 26, 2002. The complete text of the Recon and the Supplemental Final Regulatory Flexibility Analysis is available on the Commission's Internet site, at http://www.fcc.gov.,, and is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW., Washington, DC. The text may also be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B4202, Washington, DC 20554 (telephone 202-863-2893).

Synopsis of the Order on Reconsideration

1. The Recon responds to two petitions for reconsideration of the Commission's Order (60 FR 55618, November 2, 2001) in this proceeding. The Order, in further response to a petition filed by the city of Richardson, Texas, adopted rules clarifying what constitutes a valid PSAP request to trigger a wireless carrier's obligation to provide E911 service to that PSAP within six months. The Recon modifies the Commission's rules to provide additional clarification as to PSAP readiness.

2. The Recon first adopts procedural guidelines for requesting documentation predictive of a PSAP's readiness to receive and utilize the E911 service it has requested. Specifically, the Recon provides that, where a wireless carrier requests such documentation from a PSAP within 15 days of receiving the PSAP's request for E911 service, the PSAP must respond within 15 days or the carrier's six-month implementation period will be tolled until such documentation is provided. (See paragraphs 9 through 12 of the full text of the Recon.)

3. Second, the Recon clarifies that the readiness showing is for the purpose of commencing the wireless carrier's six-month implementation obligation. The Recon also establishes a procedure whereby wireless carriers that have completed all necessary steps toward E911 implementation that are not dependent on PSAP readiness may have their compliance obligation temporarily tolled, if the PSAP is not ready to receive the information at the end of the six-month period and the carrier files a certification to that effect with the Commission. (See paragraphs 14 through 21 of the full text of the Recon.)

7. Finally, the Recon clarifies that nothing in the Commission's rules precludes wireless carriers and PSAPs from mutually agreeing to an implementation schedule different from that prescribed in the Commission's rules. (See paragraph 29 of the full text of the Recon.)

Paperwork Reduction Act of 1995 Analysis

8. This Recon has been analyzed with respect to the Paperwork Reduction Act of 1995 and found to contain new reporting and information collections. Implementation of these new reporting and recordkeeping requirements will be subject to approval by the Office of Management and Budget (OMB) as prescribed by the Act. The Commission is seeking this approval on an emergency basis and will publish a notice of effective date in the Federal Register when OMB approval for these PRA burdens is received. The Commission is seeking public comment on these PRA burdens. Public and agency comments are due March 24, 2003. Comments should address:

• Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility.
• The accuracy of the Commission's burden estimates.
• Ways to enhance the quality, utility, and clarity of the information collected.
• Ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

9. A copy of any comments on the information collections contained in this Recon should be submitted to Judith Boley Herman, Federal Communications Commission, Room 1-C804, 445 Twelfth Street, SW., Washington, DC 20554, or via the Internet to jboley@fcc.gov and to Kim A. Johnson, Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB), Docket Library, Room 10236, New Executive Office Building (NEOB), 725 17th Street, NW., Washington, DC 20503 or via the Internet at Kim_A._Johnson@omb.eop.gov.

OMB Approval Number: XXXX.

Title: Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems: City of Richardson, Texas, Recon Order.

Form No. N.A.

Type of Review: New information collection.

Respondents: Business or other for profit.

Number of Respondents: 1,358.

Estimated Time Per Response: 2-40 hours.

Total Annual Burden: 13,960 hours.

Cost to Respondents: 0.

Needs and Uses: The information and coordination burdens are needed to ensure the fairness of the Commission's E911 rules and to facilitate speedy E911 implementation.

Supplemental Final Regulatory Flexibility Analysis (SFRFA)

10. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared a Supplemental Regulatory Flexibility Analysis (SFRFA) of the estimated significant economic impact on small entities of the policies and rules adopted in the Recon. The analysis may be found in Appendix C of the full text of the Recon. This is a summary of the full SFRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the Recon, including the SFRFA to the Chief Counsel for Advocacy of the Small Business Administration.

A. Need for, and Objectives of, the Recon Order

11. In response to petitions for reconsideration, the Commission amends its rules to clarify what constitutes a valid Public Safety Answering Point (PSAP) request to trigger a wireless carrier's obligation to provide enhanced 911 (E911) service to the PSAP within six months. Specifically, the Recon adopts procedural guidelines for requesting documentation predictive of a PSAP's readiness to receive and utilize the E911 service it has requested, by specifying that where a wireless carrier requests such documentation from a PSAP within 15 days of receiving the PSAP's request for E911 service, the PSAP must respond within 15 days or the carrier's six-month implementation period will be tolled until such documentation is provided. The Recon also clarifies that the PSAP readiness showing is for the purpose of commencing the wireless carrier's six-month implementation obligation, and establishes a procedure whereby wireless carriers that have completed all necessary steps toward E911 implementation that are not dependent on PSAP readiness may have their compliance obligation temporarily tolled, if the PSAP is not ready to receive the information at the end of the six-month period and the carrier files a certification to that effect with the Commission. Finally, the Recon clarifies that nothing in the Commission's rules precludes wireless carriers and PSAPs from mutually agreeing to an implementation schedule different from that prescribed by the Commission's rules.

12. The actions adopted in the Recon are intended to promote communication between wireless carriers, local exchange carriers (LECs) and PSAPs and to provide further clarity regarding their respective obligations in implementing wireless E911. Wireless E911 implementation is very situation-specific and can vary significantly from jurisdiction to jurisdiction and from carrier to carrier, depending on a number of factors. The clarifications adopted in the Recon are also intended to facilitate the implementation process by encouraging parties to communicate with each other early in the E911 implementation process, and to maintain a constructive, on-going dialog throughout the implementation process.

B. Summary of Significant Issues Raised by the Public in Response to the FRFA

13. The Commission received two petitions for reconsideration of its decision in the Order. One petitioner, Cingular Wireless LLC (Cingular) raises several procedural arguments against the validity of the decision adopted in the Order, based on the requirements of the Administrative Procedure Act. In support, several small carriers filed comments also challenging the decision on a procedural basis, arguing that the decision contravenes the provisions of the RFA because it does not take account of, and attempt to reduce, the disproportionate burdens placed on small and rural carriers. These smaller carriers maintain that, in order to minimize the danger of unnecessary economic outlay on small carriers, the Commission should impose an actual-readiness requirement on PSAPs operating in areas where rural, small and mid-sized carriers do not have a large customer base to absorb their E911 implementation costs and are thus more vulnerable to delays in implementation caused by a PSAP's inability to receive and utilize the E911 data supplied by the carrier. The Commission is aware of the concerns of small and mid-sized rural carriers and discussed these concerns in the FRFA. However, as the Commission has iterated throughout this proceeding, any failure in E911 communications, regardless of whether the carrier is small or large, or whether the carrier has a large customer base or small, can result in tragedy. Nonetheless, the Commission has tried wherever possible to ease the regulatory burden in this proceeding on small entities. The Commission's phased-in approach to E911 implementation is an example of this desire to accommodate the needs of small entities where it does not compromise our commitment to the goals of this proceeding.

14. The FRFA addresses the issue of whether to adopt an actual-readiness requirement on PSAPs and finds that the readiness showing adopted in the Order “will in fact reduce the vulnerability of the smaller carriers, as they will be working along with the PSAPs to ensure implementation of E911 service on a timely basis, and will better be able to plan their progression and allocation of resources during the implementation process * * *.” The FRFA concludes that, “Considering the potential burdens placed on all small entities, we find that the institution of objective criteria by rule amendment will benefit all PSAPs and carriers, including small entities, by more clearly defining E911 readiness, thus reducing the potential for misunderstanding between parties, and by reducing instances of delay in E911 implementation. In turn, this will reduce the likelihood that any PSAP or carrier, including all small entities, will have to expend its limited capital resources prematurely and/or improvidently.”

15. The Recon takes several steps to mitigate the economic risk to smaller carriers. First, as discussed in paragraphs 9 through 12 of the full text, the Recon responds to carrier comment that indicates the present rule does not specify time limits for responding to a carrier's request for PSAP readiness documentation, by establishing that where a wireless carrier requests readiness documentation in writing within 15 days of receiving the PSAP's request for E911 service, the PSAP will have 15 days to provide such documentation. The Commission believes that these 15-day timeframes will both reduce a carrier's ability to use a documentation request as a delaying tactic, and minimize unnecessary carrier expenditures in those situations where the PSAP is unable to demonstrate that it will be ready to receive and utilize the requested E911 information by the end of the six-month period allotted for carrier compliance. The Recon also acknowledges, as discussed in paragraph 14, that the current rules do not provide for situations where a PSAP has made the upfront readiness showing necessary to trigger Phase II implementation, but turns out to be incapable of receiving Phase II information at the end of the six-month implementation period. To address such situations, the Recon Order modified the Commission's rules in several respects. These modifications are set out in detail in paragraphs 15 through 21 of the Recon Order.

C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

16. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under section 3 of the Small Business Act, unless the Commission has developed one or more definitions that are appropriate for its activities. Nationwide, there are 4.44 million small business firms, according to SBA reporting data.

17. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations.

18. The definition of “small governmental jurisdiction” is one with populations of fewer than 50,000. There are approximately 85,006 governmental jurisdictions in the nation. This number includes such entities as states, counties, cities, utility districts and school districts. There are no figures available on what portion of this number has populations of fewer than 50,000. However, this number includes 38,978 counties, cities and towns, and of those, 37,556, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all government entities. Thus, of the 85,006 governmental entities, we estimate that ninety-six percent, or about 81,600, are small entities that may be affected by our rules.

19. Neither the Commission nor the SBA has developed definitions for small providers of the specific industries affected. Therefore, throughout our analysis, the Commission uses the closest applicable definition under the SBA rules, the North American Industry Classification System (NAICS) standards for “Cellular and Other Wireless Telecommunications” and “Wired Telecommunications Carriers.” According to this standard, a small entity is one with no more than 1,500 employees. To determine which of the affected entities in the affected services fit into the SBA definition of small business, the Commission will refer to Table 5.3 in Trends in Telephone Service (Trends) a report published annually by the Commission's Wireline Competition Bureau.

20. We have included small incumbent local exchange carriers in this RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small incumbent carriers in this RFA analysis, although we emphasize that this RFA action has no effect on the Commission's analyses and determinations in other, non-RFA contexts.

Local Exchange Carriers. According to the most recent Trends data, 1,329 incumbent carriers reported that they were engaged in the provision of local exchange services. Trends indicates that of these entities, 1,024 local exchange carriers report that, in combination with their affiliates, they have 1,500 or fewer employees, and would thus be considered small businesses as defined by NAICS.

Competitive Access Providers and Competitive Local Exchange Carriers (CAPs and CLECs). Trends indicates that 532 CAPs and CLECs, 134 local resellers, and 55 other local exchange carriers reported that they were engaged in the provision of competitive local exchange services. The Commission does not have data specifying the number of these carriers that are not independently owned and operated. However, Trends states that a total of 595 of these entities employ 1,500 individuals, thus qualifying as small entities.

Wireless Telephone Including Cellular, Personal Communications Service (PCS) and SMR Telephony Carriers. There are 858 entities in this category as estimated in Trends, and 291 such licensees in combination with their affiliates have 1,500 or fewer employees, and thus qualify as small businesses using the NAICS guide as small businesses.

Special Mobile Radio (SMR) Dispatch. Trends estimates 289 entities in this category and all 289 licensees, in combination with their affiliates, have 1,500 or fewer employees, and thus qualify as small entities using the NAICS guide.

Other Mobile Service Providers. Trends estimates that there are 32 providers of other mobile services, and again using the NAICS standard, all 32 providers of other mobile services utilize with their affiliates 1,500 or fewer employees, and thus may be considered small entities.

Toll Service Providers. Trends calculates that there are 932 toll service providers, and that 832 toll service providers with their affiliates have 1,500 or fewer employees and thus qualify as small entities as defined by NAICS.

Offshore Radiotelephone Service. At present, there are approximately 55 licensees in this service. The Commission is unable at this time to estimate the number of licensees that would qualify as small entities under the SBA definition for radiotelephone communications. The Commission assumes, for purposes of this SFRFA, that all of the 55 licensees are small entities, as that term is defined by NAICS.

Public Safety Answering Points. Neither the Commission nor the SBA has developed a definition of small entities applicable to PSAPs. In order to give a numerical quantification of the number of PSAPs that are small entities affected by the rule modifications, it appears there are approximately 5,000 primary PSAPs nationwide. For purposes of this SFRFA, we assume that all of the PSAPs are small entities, and may be affected by the rule amendments.

D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

21. As indicated in paragraphs 15 through 21 of the Recon, in order to toll the six-month implementation period, a wireless carrier must file a certification with the Commission that it has completed all necessary steps towards E911 implementation that are not dependent on PSAP readiness and that the PSAP is not ready to receive the information at the end of the six month period. Additionally, the Commission clarifies that nothing in our rules precludes wireless carriers and PSAPs from mutually agreeing to an implementation schedule different from that prescribed by the Commission's rules.

E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

22. The Commission is limited in this proceeding as to minimizing the burden on small entities. The proceeding is intended to provide all Americans with the most reliable, responsive emergency services that are technologically possible. The critical nature of this goal demands that all entities involved, regardless of size, bear the same responsibility for complying with requirements adopted to expedite reaching this goal. A delay in response caused by a small entity could result in the same fatal consequences as a delay caused by a large entity.

23. The Commission, upon review of the petitions for reconsideration of the Order, could have elected to simply deny the petitions and leave the rules as is, or it could have modified the rules to intensify the demonstration requirements on PSAPs. Instead the Commission makes certain clarifications to the rules to dispel some of the existing confusion as to PSAP readiness and the decision adopted in the Order, and modifies the rules to accommodate certain of the carrier's continuing concerns, while refraining from imposing additional burdens on PSAPs, most of whom are either small or mid-sized entities.

24. First, the Recon, in paragraphs 9 through 12 clarifies the rules along the lines suggested by two wireless carriers by establishing the parallel 15-day timeframe for carrier requests and PSAP responses in certain instances where the PSAP does not provide readiness documentation simultaneous with its request for E911 service. The Commission takes this action to promote early communication between wireless carriers and PSAPs, to expedite the E911 implementation process, to reduce a carrier's ability to use a documentation request as a delaying tactic, while minimizing unnecessary carrier expenditures where the PSAP is unable to demonstrate that it will be E911 capable by the end of the six-month period allotted for carrier compliance. This modification thus benefits both small and mid-sized wireless carriers and PSAPs and strengthens the Commission's efforts to encourage necessary cooperation between carriers and PSAPs in achieving truly responsive E911 implementation.

25. Second, to address situations in which a PSAP has made the upfront readiness showing but turns out to be incapable of receiving E911 Phase II information at the end of the six-month implementation period, the Recon amends 47 CFR 20.18(j) in several ways. (See paragraphs 14 through 21 of the Recon.) The Recon clarifies that the readiness showing is for the purpose of commencing the wireless carrier's six-month implementation obligation. The Recon also establishes a certification procedure whereby wireless carriers that have completed all necessary steps toward E911 implementation that are not dependent on PSAP readiness may have their six-month compliance obligation temporarily tolled. These procedures, set out in paragraphs 15 through 21 of the Recon, minimize the financial risk to wireless carriers while providing PSAPs with an opportunity to respond and set up several other restrictions in the certification procedure to avoid abuse of the process by all parties involved.

26. Several wireless carrier commenters recommend that the Commission amend its rules to require that the PSAP obtain the local exchange carrier's (LEC's) written commitment to complete the required Automated Location Information (ALI) database upgrades within the six-month period. As discussed in paragraph 23 of the Recon, the Commission does not adopt such a regulation. In paragraph 24, the Commission also declines to adopt a second, alternative proposal that would require PSAPs to acquire copies of an LEC's schedule of ALI database upgrade, because PSAPs are not in the best position to furnish such documentation. In paragraph 25 of the Recon, the Commission directs the Wireless Telecommunications Bureau to collect additional information periodically from LECs regarding the status of their efforts in connection with wireless E911 deployment to PSAPs and to consumers.

27. Report to Congress: The Commission will send a copy of this Recon, including this Supplemental FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of this Recon, including this Supplemental FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

Ordering Clauses

28. The Petition for Reconsideration filed by Sprint is granted to the extent provided in the full text of the Recon and that the Petition is otherwise denied.

29. The Petition for Reconsideration filed by Cingular is denied.

30. Part 20 of the Commission's rules is amended as indicated in the rule changes section of this summary, effective February 21, 2003, except for §§ 20.18(j)(4) and (5), which contain information collection requirements that are not effective until approved by the Office of Management and Budget. The Commission is seeking emergency approval from the Office of Management and Budget for these collections. Public comment on the information collections on these PRA burdens are due March 24, 2003. The Commission will publish a document in the Federal Register announcing the effective date for these sections.

31. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Recon, including the Supplemental Final Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 20

• Communications common carrier
• Communications equipment
• Radio

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 20 as follows:

PART 20—COMMERCIAL MOBILE RADIO SERVICES

1. The authority citation for part 20 continues to read as follows:

Authority: 47 U.S.C. 154, 160, 251-254, 303, and 332 unless otherwise noted.

2. Section 20.18(j) is revised to read as follows: